UNION UNFAIR PRACTICES; DUTY OF FAIR REPRESENTATION – In General; Prima Facie Case
Single Topic for Decision 2012E
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800.01000 – In General; Prima Facie Case
To establish a prima facie case for violation of the duty of fair representation the charging party must allege facts showing that the union’s actions were arbitrary, discriminatory or in bad faith. Here charging party complained that the union delayed action, and failed to adequately pursue various grievances. However, where at least one reason for delay in scheduling meetings was because of Charging Party’s unavailability, no facts were alleged demonstrating a foreclosure of the employee’s ability to obtain a remedy, and no facts were alleged showing that the union’s actions were arbitrary, discriminatory or in bad faith, the Charging Party failed to set forth a prima facie case for violation of the duty of fair representation. The union has the discretion whether or not to pursue a grievance. Refusal to pursue an untimely grievance or a grievance the union believes is unmeritorious is not a violation, as long as the refusal is not arbitrary, discriminatory, or in bad faith. It is the Charging Party’s burden to allege facts which demonstrate that the refusal was arbitrary, discriminatory, or in bad faith. Where Charging Party failed to do so the charge failed to establish a prima facie case for breach of the duty of fair representation. The union’s refusal to grant Charging Party’s request for a representative other than the one assigned by the union is not a violation. The duty of fair representation does not obligate a union to provide an employee with the representative of his or her choice. The decision assigning a representative is an internal union matter and is not subject to the duty of fair representation.